Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Watson v. United States

United States District Court, D. Maine

February 5, 2019

XAVIER WATSON, Petitioner,


          John C. Nivison U.S. Magistrate Judge

         In this action, Petitioner Xavier Watson moved, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 276.) While Petitioner's objection to the amended recommended decision to dismiss the section 2255 motion was pending, Petitioner filed several motions, including the motions filed at ECF Nos. 294, 295, 296, 298, 299 on the docket.[1] In the motions, Petitioner requests leave to amend his section 2255 motion to add new claims for relief.

         Following a review of Petitioner's motions and the record, I recommend the Court deny the relief requested in the pending motions. (ECF Nos. 294, 295, 296, 298, 299.)

         I. Factual Background and Procedural History

          In May 2017, following a guilty plea, Petitioner was convicted of Hobbs Act robbery, 18 U.S.C. § 1951(a) (Count 2); and aiding and abetting the brandishing of a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c) (Count 3); the Court sentenced Petitioner to prison terms of 37 months on Count 2 and to 84 months on Count 3, to be served consecutively, for a total term of 121 months.[2] (Judgment, ECF No. 177 at 1-2.)

         In February 2018, the Court amended the sentence on Count 3 from 84 months to 78 months (still to be served consecutively); after the amendment, the total prison term was 115 months. (Id.; Amended Judgment, ECF No. 264 at 1-2.) Petitioner did not appeal from the conviction or the sentence.

         In May 2018, Petitioner filed a motion to vacate, set aside or correct the sentence, pursuant to section 2255 (ECF No. 276). In October 2018, the Court issued an amended recommended decision (ECF No. 285).[3] In November 2018, Petitioner filed an objection (ECF No. 287) and an amended objection (ECF No. 288), to the amended recommended decision. In January 2019, the Court dismissed Petitioner's 28 U.S.C. § 2255 motion. (Order, ECF No. 303.)

         In December 2018, Petitioner filed the motions (ECF Nos. 294, 295, 296, 298, 299) addressed in this recommended decision. In the motions, Petitioner seeks an evidentiary hearing (ECF No. 295), and to supplement his section 2255 claim. (ECF Nos. 294, 295, 296, 298, 299.)

         II. Discussion

         In his section 2255 motion, Petitioner asserted a claim based on Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015), and Sessions v. Dimaya, __ U.S. __, 138 S.Ct. 1204 (2018), and a related claim of ineffective assistance of counsel.[4] (Motion, ECF No. 276 at 2-3.)

         In the motions addressed in this recommended decision (ECF Nos. 294, 295, 296, 298, 299), Petitioner sets forth additional claims of ineffective assistance of counsel at the plea stage and at sentencing.[5] Petitioner requests leave to amend the section 2255 motion to include the additional claims.

         As a preliminary matter, Petitioner waived the section 2255 claims set forth in the pending motions, because he raised the claims belatedly. A court may determine that a section 2255 claim raised for the first time in a reply is waived: “A first petition for post-conviction relief under § 2255 should raise all available claims. Informal reference to a new claim in a reply brief will not suffice to raise a claim if the district court does not address that claim in its order.” United States v. Barrett, 178 F.3d 34, 57 (1st Cir. 1999) (holding that the “[f]ailure to raise an available claim does not permit an end-run around the requirements of § 2255 by resort to § 2241 or the All Writs Act, ” and denying the petitioner's request as a second or successive petition); see also United States v. Lee Vang Lor, 706 F.3d 1252, 1256 (10th Cir. 2013) (noting that in civil cases, “a party waives an issue in the district court if he waits to raise the argument until his reply brief;” concluding “the same rule logically applies in a § 2255 proceeding, considering that plain error review does not apply to forfeited errors on a § 2255 review;” and citing United States v. Frady, 456 U.S. 152, 166 (1982)); United States v. Berry, 624 F.3d 1031, 1039 n.7 (9th Cir. 2010) (noting that because a claim was raised for the first time in the petitioner's reply brief, it was not addressed by the district court and was outside the scope of appellate review). Petitioner not only failed to raise the claims in his reply, but he only asserted the claims after the Court issued the recommended decision.

         In Petitioner's ineffective assistance claim concerning the plea, Petitioner alleges counsel should have negotiated a more favorable plea agreement: “Petitioner had other plea options that the lawyer failed to pursue that were more suitable to petitioner's situation.” (Motion, ECF No. 294 at 7.) Petitioner alleges counsel should have negotiated a nolo contendere plea, which he contends would have prevented certain unspecified facts from being established in the record and thus would have protected Petitioner from the use of the information to threaten him.[6] (Id. at 7-8.) Petitioner alleges he was prejudiced because he was exposed to threats and harassment from fellow inmates who had obtained access to some court filings in Petitioner's case.[7] (Id. at 7.)

         “A defense attorney in a criminal case has an obligation to keep his client apprised of plea offers made by the government.” Rivera-Rivera v. United States, 844 F.3d 367, 372 (1st Cir. 2016) (citing Missouri v. Frye, 566 U.S. 134, 145 (2012)). The uncontroverted record establishes that counsel communicated to Petitioner the plea offer made by the Government and accepted by Petitioner. (Plea Agreement, ECF No. 108 at 6.) Petitioner has not demonstrated the Government offered a plea of nolo contendere, that it discussed such a plea with counsel, or ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.